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State v. Herring

Supreme Court of Connecticut

October 25, 2016

STATE OF CONNECTICUT
v.
TERRY P. HERRING

          Argued December 7, 2015

          Mary A. Beattie, assigned counsel, for the appellant (defendant).

          Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Christian Watson, assistant state's attorney, for the appellee (state).

          Timothy H. Everett, Todd D. Fernow and Elisa L. Villa, and Thadius Bochain, Robert Fontaine and Benjamin Haldeman, certified legal interns, filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

          Rogers, C. J., and Palmer, Zarella, Eveleigh and McDonald, Js.

          OPINION

          ZARELLA, J.

         The defendant, Terry P. Herring, appeals from the judgment of the Appellate Court affirming his conviction, rendered after a jury trial, of conspiracy to distribute one kilogram or more of a cannabis-type substance in violation of General Statutes §§ 21a-278 (b) and 53a-48, and possession of one kilogram or more of a cannabis-type substance with intent to sell as an accessory in violation of § 21a-278 (b) and General Statutes § 53a-8. State v. Herring, 151 Conn.App. 154, 155, 173, 94 A.3d 688 (2014). The Appellate Court concluded, inter alia, that, under the waiver rule announced in State v. Kitchens, 299 Conn. 447, 482-83, 10 A.3d 942 (2011), the defendant failed to preserve his claim that the trial court had incorrectly instructed the jury on the state of mind required to find him guilty of both offenses.[1]See State v. Herring, supra, 170-71. On appeal to this court, the defendant does not challenge the Appellate Court's conclusion that he waived his jury instruction claim under Kitchens. Instead, he requests that the waiver rule in Kitchens be overturned and that his claim be reviewed under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).[2] He contends that, if this court reviews his claim under Golding, he would prevail because the trial court's instruction resulted in harmful error. In the alternative, the defendant seeks review under the plain error doctrine. Our resolution of the defendant's request to overturn the waiver rule is controlled by our decision in State v. Bellamy, 323 Conn. 400, 403, ___ A.3d ___ (2016), in which we considered the rule's continued viability and concluded that it should not be overturned. Accordingly, we reject the defendant's request to overturn the waiver rule in Kitchens and to review his jury instruction claim under Golding. We also decline to review his claim under the plain error doctrine because such review is beyond the scope of the certified question.[3]

         The judgment of the Appellate Court is affirmed.

         In this opinion the other justices concurred.

          ROGERS, C. J, concurring.

         For the reasons explained in my concurrence in State v. Bellamy, 323 Conn. 400, 454, A.3d (2016), I continue to adhere to my belief that we should overrule our opinion in State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), thereby reinstating the much narrower conception of implied waiver of claims of jury instructional error that predated Kitchens. See State v. Bellamy, supra, 454-55. Under the unique circumstances and for the limited purpose of the present appeal, however, I concur with and join the majority opinion.

          PALMER, J., with whom McDONALD, J., joins, concurring.

         I continue to adhere to the views expressed in my concurrence in State v. Bellamy, 323 Conn. 400, 466, A.3d (2016), with respect to the law of implied waiver as applied to jury instruction claims. Under the unique circumstances and for the limited ...


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